Last week we discussed the role of the Finance Committee for nonprofit organizations. Now we’d like to take a quick look at the Investment Committee, which generally has responsibility for overseeing the invested assets of an organization.
An Investment Committee can provide a good check and balance to ensure that restricted or reserved assets are properly stewarded for their intended purpose. The most common type of assets in this category would be your endowment, whether it’s a true endowment or a board restricted fund. An endowment is meant to have some degree of permanence, so it’s important to make sure the assets aren’t depleted just to balance the budget or cover routine expenses. In addition to an endowment, organizations sometimes have an investment account with less formal restrictions, but that operates more like a savings account may to an individual.
The Investment Committee:
Creates an investment policy to reflect the risk tolerance of the organization and provide guidance on the general portfolio makeup of the account
Creates a spending policy to clarify how much of the account can be drawn each year and how that amount is determined
Monitors the performance of the organization’s investments
Helps moderate the conflicting desires to create a large reserve fund that can provide consistent support to the operating budget through the yearly draws, and the desire to spend the money to balance budgets and expand programming
The following is a sample description of the Investment Committee:
The Investment Committee shall: (a) recommend policies to the Board concerning the management and use of the Corporation’s assets, including its endowment funds; (b) review and assure compliance with such policies that are adopted by the Board; (c) select a professional investment advisor to assist the Committee with periodic evaluations of the investment performance of assets, asset allocation, selection and monitoring of investment managers, and the execution of its responsibilities; (d) select and monitor the performance of investment managers and custodians; (e) for planning and budgeting purposes, recommend a policy for determining the annual transfer of funds from the any endowment funds to the operating or program budget; (f) report to the Board at least annually on the management and performance of endowment assets versus relevant benchmarks; and (g) if authorized by the Board, develop policies and guidelines for, and monitor the performance of, investments in any retirement or pension plan for the benefit of the Corporation’s employees.
The Investment Committee can be a good place for non-board volunteers to serve in an advisory capacity, even as voting members. As part of your board’s overall duty to manage the organization’s finances, though, it is important that any policies created by the Investment Committee be recommended to and approved by the full board.
The Investment Committee can be chaired by a vice chair of the board, or the assistant treasurer, or another officer or board member. However, if your treasurer chairs your Finance Committee, make sure he/she does not also chair the Investment Committee, in order to preserve the value of the checks and balances this committee is meant to create.
If you’re managing a smaller organization and have been reading this blog series, you may have begun to feel that I have suggested more standing committees than you have members of your board. Certainly there is room for overlap in the committee membership, and as I mentioned above, the Investment Committee is a place where non-board member volunteers can be effective. If you do have invested assets, though, I strongly recommend against operating with a combined Finance and Investment Committee. It may be possible to combine the duties of the Investment Committee with the Executive Committee. You may also want to make the Investment Committee a “committee of the whole”, which means your full board would take on these responsibilities.
Creating your investment and spending policies is very important work, and in a future post, we’ll take a look at some of the big questions to be considered when establishing these guidelines for your organization.
The next three standing committees we’ll examine are very closely related. These are the Finance Committee, the Audit Committee, and the Investment Committee. Sometimes the names of these committees are interchanged or combined, so as we move forward, make sure to focus on the function of the committees, not the names, to sort out the structure that will be best for your organization.
The Finance Committee is the group that has principal responsibility for your organization’s budget and financial performance. It is generally chaired by the organization’s Treasurer. The budget process will be the focus of the committee toward the end of the fiscal year. In close consultation with staff, the organization’s Treasurer and the committee will look at last year’s performance and determine new targets for income and expenses. The process isn’t really any different for a nonprofit organization than it is for any for profit business, and should produce a well reasoned, well supported projection of the next fiscal year’s full financial picture based on past financial and performance history.
I always recommend that the whole organization have a deep involvement in the budgeting process. Staff in your program areas will have the best information on the need for your organization’s services, be they social services, education, performing arts events, or anything else. The budget process is time for them to examine what resources they need to to their jobs, what the need is in your community for those services, and what the community can and will pay for them. Understanding this information will help them engage in meaningful discussions of what expenses will be needed, and what earned or contributed income is likely for the next year. Your organization’s development staff will also have an important role in the discussion, as they will be able to assess the extent to which the philanthropic community will support the services your program staff suggests.
In large organizations, this staff budgeting process will likely be coordinated by the executive director. However, when staff has made their initial budget recommendations, a robust discussion with senior staff and the Finance Committee should follow to balance not only the organization’s priorities but also the budget.
Once the Finance Committee is satisfied with the budget, a recommendation is made to the full Board for approval, since establishing and monitoring the budget is one of the primary duties of a board of directors. If possible, keep the Board updated on challenges during the budgeting process. When you present the final recommended budget to the board, I strongly recommend you include a narrative description with your spreadsheets, describing why each line item, or at least each group of line items, is increasing, decreasing, or staying the same compared to prior years. I find most boards want to see at least 3 years of past performance, meaning budgets and actual performance for each year, in order to understand the trajectory of the organization.
I understand this all sounds very formal and cumbersome, and if you’re leading a smaller nonprofit, you may not think it’s really necessary. However, I’d like to suggest that the process of establishing a budget really is the same, no matter the size or type of organization. For smaller budgets or organizations focused on a single line of business, the process may not take as long, but staff involvement is very important, and having a board committee dig into budget and performance is crucial for sustainability and success.
Remember, a budget is only an aspirational expression of your organization’s financial situation at the beginning of a fiscal year. Equally important is regular monitoring of actual performance compared to budget. This monitoring, along with regular reporting to the full board, is the second primary responsibility of the Finance Committee. In my experience, board members like to see regular, monthly updates, along with same time last year benchmarking to judge progress. To the extent possible, regular monthly or quarterly projections of where you’ll be at fiscal year end relative to budget are also extremely important, and allow you to communicate both good news (perhaps a new, large gift or grant or contract for services), and bad news (a loss of regular or anticipated funding) to the full board in a timely and meaningful way.
A caution for staff: Board and committee members who are unfamiliar or uncomfortable with formal financial reporting often request staff to prepare budgets and updates in many different formats, I believe in an effort to help them understand the reports they’re reviewing. Some want more information, some less. Some what spreadsheets, some want graphs. Some want dashboard style reporting, others just want the P&L. Listen to their concerns, adopt a standard form of reporting, and try to stick to it. Spend some time, or have your committee chair spend the time, teaching board members how to read the reports you are generating, to avoid spending time reformatting your reporting every month. (Yes, I have seen that happen.)
I’m often asked what kind of volunteers will make good Finance Committee members. Accounting expertise is helpful, but often your business office or outsourced CPA can advise on these technical issues. I like to see savvy business people who are used to the budgeting and financial monitoring process in their own business as members of this committee. I also strongly recommend a member of the development committee sit on the Finance Committee. Without that voice, it’s just too tempting for the contributed income line item to be whatever number is needed to balance the budget.
Another frequent question is whether non-board members can serve on the Finance Committee. In general, I recommend against this. I feel it is very important that the individuals setting and monitoring the organization’s finances be members of the board with the fiduciary duties of care and loyalty. That said, it is quite appropriate to use non-board volunteers for advice and counsel if your board does not have sufficient expertise in financial matters. These volunteers should not, however, be voting members of the Finance Committee.
The following is a sample job description for the functions of a typical Finance Committee:
The Finance Committee shall: (a) review and make recommendations to the Board concerning the Corporation’s annual operating budget; (b) review and make recommendations to the Board concerning the Corporation’s annual capital budget; (c) monitor compliance with and variances from the budgets during the course of each year; (d) ensure that the Corporation’s financial reports provide accurate and timely information to the Board; (e) review proposed financings and borrowings, and make recommendations to the Board with respect thereto; (f) review the Corporation’s risk management and insurance needs and policies, and make recommendations with respect thereto; (g) assist the Corporation’s Chief Financial Officer with long-term financial planning; and (h) review and approve fiscal policies, including those relating to check signing authority, accounts receivable collection, and management of accounts payable.
You’ll see this job description includes risk management, which we have not discussed in this blog. Some organizations make risk management a staff responsibility, which is quite appropriate. Including this activity in the responsibilities of your Finance Committee may depend on the expertise you have on your board.
You’ll also see that this job description does not include investment management, which I recommend, for organizations with investable funds, be housed in an Investment Committee, the subject of our next blog installment.
The Executive Committee of a nonprofit board can have many different forms and functions, often depending on the size or engagement of the board. Today we’ll look at several options and their advantages. First, though, let’s look at some rather universal concepts.
The Executive Committee is generally the body that directly oversees an organization’s highest paid staff member. Hiring, compensation, performance evaluation, and firing decisions are nearly always made by this group, which then informs the board of their decisions or recommendations. Housing these sensitive personnel matters in the Executive Committee provides important perspective and check and balances for your board president, and also confines the discussion of potentially sensitive personal information to a small, trusted group of board members, as opposed to presenting these discussions in the more open setting of a full board meeting.
In addition, the Executive Committee should have a strong voice regarding the agenda of meetings of the full board. In this role, the committee should ensure all important information and items for discussion and decision are included on your board agenda at the appropriate time to meet target dates in the strategic timeline or legal/regulatory deadlines. The Executive Committee should also ensure that any matter presented to your board for decision has been fully investigated and vetted, thereby ensuring your board members have all the information they need to make a decision for the organization.
If your organization has a large board, the Executive Committee can play a very important role in communicating information to and from your organization’s leadership. In this scenario, the chairpersons of each committee of the board, along with the board’s officers, generally comprise the membership of the Executive Committee. These members take decisions about the organization’s strategic direction to the various committees, which then work to implement those decisions in more detail. The members of the Executive Committee also report on their committees’ progress, to ensure continued alignment and to prevent duplication of efforts.
For a smaller board, the Executive Committee may only include the officers of the board, who may occupy a more hands on role in assisting your Executive Director.
Whichever structure makes sense for your organization, think of your Executive Committee as the body that helps coordinate the work of the board to maximize board engagement and effectiveness.
And because the Executive Committee plays such a central and often sensitive role, I recommend all members of this committee be members of your board currently in office. We’ll look at other committees where non-board members can appropriately serve, but the Executive Committee isn’t one of them.
With these concepts in mind, let’s look at another common function of the Executive Committee. Most state laws permit the Executive Committee to act between meetings of the full board, provided their actions are reported to and ratified by the full board at its next meeting. While this power certainly allows decisions to be made quickly and permits the scheduling of less frequent meetings of the full board (which, admittedly, means less work for staff), it may also contribute to less board engagement. There is a danger that, since the Executive Committee is easier to assemble and often consists of the Executive Director’s and board president’s closest colleagues, more and more decision making will be shifted over time to the committee, instead of allowing the full board the opportunity to consider important issues and feel engaged in the work of the organization. I generally recommend that the power of the Executive Committee to act between meetings of the full board be limited to emergency situations.
The following is a sample description of the Executive Committee’s responsibilities:
Membership of the Executive Committee shall be comprised of the officers of the Corporation, the chairpersons of each of the Corporation’s standing committees, and such other individuals as may be appointed by the Chair of the Board, provided that all members of the Executive Committee shall be Directors of the Corporation currently in office. The Executive Committee will serve as the compensation committee and is responsible for hiring and determining compensation for the President of the Corporation. The Executive Committee, if necessary to meet legal deadlines or obligations or in emergency situations where action is required immediately, may have and exercise all of the authority of the Board of Directors in the management of the Corporation except as such authority is limited by the Articles of Incorporation, the Regulations, or by statute, or as may be limited by the resolution relating to the Committee. All action taken by the Executive Committee shall be reported at the next full Board meeting. The Executive Committee may act by a majority of the members of the Executive Committee at a meeting or in a writing or writings signed by all Executive Committee members.
One final comment for smaller organizations — if a board lacks sufficient members to staff all of the standing committees you might like to have, it is possible to have the Executive Committee assume the typical duties of the Board Development Committee, especially when an organization is in its formative years.
Most of us are familiar with the concept of a nominating committee, the primary or perhaps only responsibility of which is to nominate new board members and officers for your organization’s board of directors. Typically, the process goes something like this:
A month or two before the annual meeting, the board chair asks for a small group of volunteers to put together a slate of nominees for the board. That group meets to come up with a short list of people they think would agree to serve by looking at their own personal list of contacts. Phone calls are made, simple expectations for board members communicated, and the group gets back together to see who said yes and who said no. If enough candidates said yes to fill the vacant slots, the list is forwarded to the full board, and then voted on at the annual meeting. A similar process is probably used to recruit officers from among the board, generally also elected at the annual meeting. Here ends the responsibility of the nominating committee.
This process gives short shrift to your organization’s need to create and maintain an involved, effective board with the skills and diversity necessary to advise staff on strategy and best practices for your service area. Imagine board and committee meetings where you can pose challenging questions about the overall direction, effectiveness and financial stability of your organization and consistently receive advice and counsel that is relevant and on point. If this kind of dynamic doesn’t sound like your board, I recommend the first place you look is your nominating committee.
The names nominating, governance and board development committee are often used interchangeably. Consider, though, the scope of the work implied by these names. The nominating committee nominates candidates for election. There is often no overarching strategy or planning involved, no assessment of the skills sets needed by the organization, and no long view of succession planning for leadership. A nominating committee is like failing to attend class all semester and cramming for the test the night before — you may pass the test but any long term retention of the information is probably accidental.
A governance committee gets a little closer to our ideal, in that the name implies some ongoing responsibility for monitoring board members’ performance against stated duties. However, often the strategic view of cultivating and recruiting new members to the board is missing.
The board development committee should, ideally, encompass all of these responsibilities. Its members should be carefully chosen from among members of the Board (this generally is not a committee where non-board members serve as volunteers). The responsibility of the board as whole is to set strategy, so the responsibility of the board development committee should include a strategic view of who is on the board, how members are recruited, what training and information members need to be effective, and how board members will be held accountable for their performance.
The following is a sample description of the a board development committee. It is fairly comprehensive, but I have used it for both large and small organizations. If your board is small, the duties of the board development committee can be combined with the executive committee until your board is large enough to support both standing committees.
Membership of the Board Development Committee shall consist solely of Directors of the Corporation currently in office. The Board Development Committee shall: (a) identify and evaluate candidates for election and re-election to the Board and recommend them for election; (b) identify Directors to serve as Officers and nominate them for election by the Board; (c) approve candidates recommended to serve as Ex Officio Directors; (d) assist the Board in developing a statement of expectations for individual Directors, including standards for committee service and financial support; (e) develop procedures for the cultivation and recruitment of new Directors, including an assessment of skills, expertise and diversity needed to provide strategic direction to staff; (f) create and implement an orientation program for new Directors; (g) consult with the President regarding committee assignments for Directors and other individuals; (h) monitor the procedure by which Directors annually identify and report known and potential conflicts of interest; (i) from time to time, recommend to the voting Directors amendments and revisions to the Articles of Incorporation and the Code of Regulations; (j) develop and implement criteria for, and conduct, annual evaluations of individual Directors and the Board as a whole; (k) engage in succession planning for Board leadership, especially the position of President, and make recommendations to the Board regarding the process and timing of leadership transitions; (l) keep informed of current and emerging best practices in the field of non-profit board governance and operation.
Next time, we’ll take a look at best practices related to the function of the Executive Committee.
No matter how big or small your organization is, having a solid structure for your volunteer board and committees is one of the best ways to make sure your board is efficient, engaged, and adding value to your management team. While there are templates and guidelines galore for committee descriptions, not every organization will need (or be able to support) the same committee structure. This blog series will look at the most common standing committees, what they can do, what they really should do, and how to integrate them within your larger board structure.
First, let’s outline some basic concepts. Your committee structure should be outlined in your organization’s By Laws or, as they’re called in Ohio, Code of Regulations. I’ll be speaking to Ohio’s nonprofit corporation law, but in terms of committee powers, most states are very similar. If you’re not in Ohio, though, be sure to check you state laws to make sure there are no conflicting provisions.
The theory behind any committee structure, no matter how simple or robust, is that many hands make light work. While the whole board should be involved in certain activities, and should always be the final decision making authority for the organization, the detail work of researching, investigating and advising management to recommend actions should be done by smaller groups of volunteers. That way when you present a strategy to your board, you’ve really run down all the pros and cons and can put a viable plan in front of them to discuss and, hopefully, adopt.
Committees are also the place to pull in expertise from people who don’t sit on your board. Accountants, lawyers, industry experts, consultants, service providers, and others with specific experience in your service area often have much to offer in vetting possible strategies. These people are often not the best choice for board members, though, because they may not be willing or able to engage in the kind of fundraising, outreach or advocacy that your whole board really needs to do. (We’ll dive in to that more our post about development committees.)
Remember, most importantly, that committees are supposed to help management, not add to their work load. If you’re a nonprofit manager and you routinely worry about creating an agenda for committee meetings because you don’t know what they’re supposed to do, don’t feel like you have work for them, or don’t want to have to manage the less than helpful suggestions that come out of your committee meetings, then I’d like to suggest you don’t have the right committee structure. Your board and your committee structure are not the place to steward and engage your biggest donors. Any organization’s committee structure must be a reflection of the organization’s mission and work plans, and help your staff work most effectively.
Next up we’ll look at the Board Development Committee. Until then, practice removing the phrase “nominating committee” from your vocabulary!
We’ve seen notices from just about every type of business, delivered in just about every way imaginable, outlining the response to the COVID-19 pandemic. I think we can all agree, this is a crisis. So it’s time to review some basic, and oft forgotten, principles of crisis communications.
Be honest. This one’s pretty easy, especially in states where non-essential businesses are shut down. Outline what, if any, service you’re still able to provide, and how to access it for the time being. If response times are going to be slower, set realistic expectations. This will help both your clients and your employees.
Stay in your lane. Let’s leave the science to the scientists, folks. Don’t explain the virus. Whatever you say today, even if it is correct, will be old news tomorrow anyway. When you speak, speak about your business. And don’t predict when or how you’ll be able to return to normal, until we all really know when and how we’ll be able to return to normal.
Stay professional. You have a brand for you business. Make sure everything you’re saying now, including what you say, how you say it, when you say it, and what channels you use, consistently reflects your established brand.
Here’s the big one — this is actually a chance to enhance your client relationships, and perhaps pave the way for some new ones. You need to be balanced, and don’t come across as mercenary, but anything you can offer online, at advantageous cost structures, any message you can give about how you serve your community now and when normal returns, is important. Don’t just focus on doom and gloom — remind everyone we’ll see each other on the other side.
Make sure you keep 1 through 3 in mind when you work on number 4!
If you’re having trouble crafting your message, try contacting a reputable crisis communications team for help. We’re happy to give you our recommendations if you reach out to us on our website.
The novel coronavirus has generated incredible uncertainly in nearly every aspect of business and personal life. In researching possible insurance relief for several of our clients, we discovered some very challenging limitations to standard business insurance coverages, some of which surprised all of us. The following article from Law360 is particularly instructive, and we pass it along to you here.
By Jeff Sistrunk Law360 (March 13, 2020, 3:43 PM EDT) — Property and liability insurers are bracing for an uptick in claims across virtually every line of coverage due to the outbreak of the novel coronavirus, as companies lose money by shutting down large-scale events and businesses face supply chain troubles.
Here, Law360 looks at four types of coverage that are especially ripe for disputes.
As the number of confirmed cases of COVID-19 continues to rise in the U.S., high-profile event cancellations have become a near-daily occurrence. In the past week alone, the NBA, NHL and MLB all suspended their seasons, the NCAA cancelled its March Madness basketball tournament, and Disneyland shuttered its doors indefinitely.
Attorneys who spoke with Law360 said that since late last month, they have been inundated with inquiries from insurers and event organizers seeking guidance on disputes over coverage under event cancellation policies, which generally cover at least some of the policyholder’s lost revenues and out-of-pocket expenses.
These specialized policies almost always contain a list of covered causes, and attorneys said coverage for coronavirus-related cancellations may be available if the list includes communicable diseases or, even more specifically, pandemics. However, a policy won’t kick in if an organizer cancels merely due to the fear of coronavirus in the community, according to attorneys.
“These policies cannot respond to voluntary decisions not to go forward with an event or a disinclination to gather a group,” said Laura Foggan, chair of Crowell & Moring LLP’s insurance and reinsurance group, who represents insurers. “They are designed to respond in a case where there is a legal or physical impossibility of holding an event.”
Therefore, if an organizer cancels an event due to an official ban on large public gatherings, such as those recently announced by New York and California, they are more likely to be eligible for coverage. But most cancellation policies also require the policyholder to attempt to mitigate losses by, for instance, making a good-faith effort to reschedule the event before calling it off.
“Organizers have to be prudent businesspeople and do what they would do if they were not getting reimbursed,” said Lathrop GPM LLP partner Alexandra A. Roje, who represents policyholders. “Depending on the facts of the situation, you may be able to negotiate with your vendors or seek to reschedule. However, I can guarantee that if you’re not attempting to reschedule and you’re just throwing up your hands and saying ‘Okay, I’m going to refund everyone and then go chase my carrier,’ that is going to be a problem.”
Pillsbury Winthrop Shaw Pittman LLP partner David Klein said he has been in contact with conference organizers who reported they had recently purchased event cancellation policies with express communicable disease coverage for an additional premium. But according to Klein, upon receiving the policies, the organizers discovered they contained exclusions specifically for coronavirus — with no reduction in premium.
“That is a violation of state insurance regulations in every jurisdiction I know of,” said Klein, who counsels policyholders. “That is likely to be a litigated issue. It speaks of panic in the insurance industry that they’ve tried such a bait-and-switch.”
The COVID-19 outbreak has dealt a significant blow to the global economy, as many companies have had to temporarily shutter their own properties or experienced breaks in their supply chains.
Attorneys told Law360 that these economic woes have generated disputes over two types of commercial property insurance: business interruption coverage, which covers a policyholder’s losses from having to shut down abruptly, and contingent business interruption, which kicks in when losses result from the closure of a policyholder’s supplier.
For either type of insurance to apply, there must be proof of a “direct physical loss” to a property — in the case of business interruption coverage, the policyholder’s property, or in the case of contingent business interruption, the supplier’s property.
If a property has been shuttered merely due to fears of the coronavirus, but the building remains habitable, the direct physical loss requirement won’t be met, according to attorneys.
“We’re shutting down as a global community not because property is impaired but because people are impaired,” said Wilson Elser Moskowitz Edelman & Dicker LLP partner Paul S. White, who represents insurers. “The practical nature is that there may be some direct physical damage or physical loss to some property, but it is probably going to be the exception to have a direct physical loss rather than the rule.”
If, however, an infected person has been inside of a property and physically contaminated it, that may be enough to meet the direct physical loss requirement, attorneys said.
“The ongoing research on COVID-19 indicates it may last longer in environments that are not hospitable, so it is possible that this will be a livelier coverage issue than it has been in the past,” said Klein.
Even if the initial threshold for a direct physical loss is met, though, the policyholder could run into other problems depending on the wording of their policy. Some commercial property policies with business interruption coverage contain exclusions for property damage arising from pathogens, bacteria, viruses and other disease-causing agents.
“Those may very well come into play in a scenario in which an infected person has been inside of a property, if that could somehow otherwise trigger coverage,” Foggan said.
Workers’ compensation insurers could soon face an influx of claims from workers who say they contracted COVID-19 while on the job.
A recent report by Michel Leonard of the nonprofit Insurance Information Institute predicted that workers’ comp providers would be one of two categories of insurers to experience the greatest impact from the coronavirus pandemic, along with health insurers. According to the report, the brunt of that impact will be felt by carriers providing workers’ comp coverage to hospital workers, EMTs, police officers and firefighters, as well as workers in “high-risk” sectors such as entertainment, manufacturing, transportation and retail.
Attorneys told Law360 that the success of these workers’ comp claims will depend on whether the employees’ exposure to the virus was sufficiently tied to their work. That test is known as “work relatedness.”
“Generally speaking, cases in which an employee is exposed to coronavirus onsite likely wouldn’t be considered workers’ comp cases, unless the exposure was sufficiently intertwined with the job,” Foggan said. “This is already true of situations in which an employee catches a cold or the flu.”
In the case of first responders, it should be fairly easy to demonstrate work relatedness, given that they regularly deal with populations that are more vulnerable to infection, according to attorneys. But for other workers, even those in customer-facing roles, it may be more of an uphill battle for them to prove that their exposure to the coronavirus occurred at work.
“In this situation, it may be difficult to trace the origin of the illness,” Klein said.
General liability insurance carriers will likely be pulled into the fray as companies face lawsuits over allegedly failing to protect customers from the coronavirus.
On March 9, Princess Cruise Lines Ltd. was hit with a first-of-its-kind suit by a South Florida couple who claimed the cruise company acted with gross negligence by failing to take precautions to prevent a coronavirus outbreak on one of its ships after two passengers on the previous sailing disembarked with symptoms. According to attorneys, similar litigation is almost certain to follow as the pandemic unfolds.
“All companies I know of are thinking about protocols to minimize harm, and a failure to do so may give rise to liability,” said Klein. “For example, now that many colleges and universities have decided to end classroom instruction, any college that is a laggard in adopting that approach could later be viewed as negligent.”
Claims of negligence resulting in bodily injury typically fall under “Coverage A” of standard general liability policies. However, one of the prerequisites for coverage under that prong is that there be an accidental “occurrence,” and some plaintiffs may say that companies deliberately ignored critical information that could have prevented the spread of coronavirus.
“You will definitely see a debate around whether there was an accident in these types of cases,” said McCarter & English LLP partner Sheri Pastor, who is president-elect of the American College of Coverage Counsel, an association of insurance attorneys.
Pastor said that, depending on the circumstances, companies may also be able to turn to “Coverage B” of their general liability policies, which includes coverage for the personal injury offenses of false detention and imprisonment.
“If a person alleges they were improperly detained and quarantined, that coverage could definitely apply,” Pastor said.
Even if a company succeeds in triggering coverage under one or both prongs of a general liability policy, some insurers may invoke standard exclusions for claims of property damage or bodily injury stemming from exposure to a “pollutant” or “contaminant,” as courts could read those terms broadly enough to encompass the coronavirus.
“The premises liability situation could be one in which a pollution or contamination exclusion could be implicated,” Foggan said.
I have the privilege of working with many nonprofits to create or update their gift acceptance policies. This policy is the set of guidelines adopted by your board and/or senior leadership, that balances the need for fundraising with the risk the organization is willing to take in accepting various types of gifts.
For example, taking cash is a no brainer. It’s fairly easy to know when the gift leaves the donor’s hands and gets to the nonprofit, there’s no question about what it’s worth, and the nonprofit can use it right away without any additional steps.
I’ve always put publicly traded stock in the same category as cash, but I recently had two colleagues tell me how they’d never want their nonprofit to accept stock as a gift. I was stunned, so wanted to hear their stories.
One colleague told of the donor who asked for the nonprofit’s bank account information to make a stock transfer through the automated system. The nonprofit gave the donor their regular checking account information, though (they didn’t have a brokerage account), and the transfer never went through. No one caught it until much later, when the value of the stock had decreased, making the donor’s gift much smaller.
Another colleague told me of the donor who handed him stock certificates as a gift. He took them to the bank and couldn’t deposit them in the nonprofit’s account because additional documentation was required from the donor. My friend ended up making multiple trips back to the donor to complete the documentation, all the while worrying about keeping those valuable stock certificates safe.
Both of these stories illustrate how a policy that says you’ll accept stock as a gift from your donors doesn’t give you or your staff all the tools you need actually to accept these gifts. You’ll also need procedures that give step by step instructions on how to receive, deposit, credit and probably liquidate that stock. Receiving stock through an automated transfer to your brokerage account is quick, safe and easy for your donors, if the account is established and you have the transfer instructions readily available. Receiving stock certificates is similarly quick and easy if you have all the additional forms and documents your bank will require to document the transfer and allow you to deposit in your brokerage account.
Your financial institution can and should help you develop those procedures. Check with your representative and don’t leave this easy money on the table!
We’ve talked about the benefits of the advice of a savvy accountant for a for profit business, but nonprofits need a great accountant on their team, too. Why would a nonprofit need an accountant if they don’t need to pay taxes? Why, to keep you from needing to pay taxes, of course!
Nonprofits are exempt from taxes in general, but there are some exceptions. Nonprofits can also be subject to penalties from noncompliance with various IRS rules and pronouncements. Here are some things you should be thinking about:
Are you conducting any activities that could generate unrelated business income, which is taxable even to a nonprofit (think gift shops and snack bars, depending on the type of organization you have)
Are you following all the IRS rules about acknowledging contributions correctly
Are you accepting gifts of art work, cars, boats or other unusual property
Are any of the gifts you receive restricted by your donors for a specific project or purpose
Have you classified your employees properly as either employee or independent contractor, and can you tweak the way any staff members work to reduce your employer tax responsibility
Do any of the fringe benefits you offer your employees end up creating taxable income to you (yes, that actually can happen)
Has anyone given you an interest in a partnership as a gift
Are you making grants directly to individuals, or grants to individuals or entities outside the US
These are just some of the things that can cause a nonprofit to be subject to tax or penalties if not dealt with properly, and not all of them are common sense. Whether or not you’re required to produce audited financial statements, make sure you have an accountant on your team that can help you review these and other financial practices outside of the routine context of completing your 990.
Whether you’re operating a for profit or a nonprofit enterprise, you need a great team of advisors helping you out. Surrounding yourself with people who are not only there to answer the questions you ask, but to ask questions you haven’t thought of yet is key to your success. And one of the most important team members (next to your BauerGriffith attorney, of course!) is your accountant.
Now when I say accountant, I mean more than a bookkeeper, or someone to fill out your tax returns. Both of these skills are very important, but there are so many opportunities to save money and structure your business for success that many business owners miss without the savvy advice of an accountant.
Here are just a few key issues to think about:
Are you paying and collecting sales tax when you need to, and only when you need to.
Have you classified your workers properly as employees or independent contractors, and how can making a few tweaks to the way you work with your staff potentially save you a ton of money.
Are you capturing all the possible business deductions you can for expenses.
Are you classifying your expenses properly to capture all possible depreciation for your building or capital purchases (think desks and chairs, not just buildings and large equipment).
Are you monitoring cash flow on a monthly basis, even when some expenses are paid annually.
Are you budgeting for hidden expenses like credit card processing fees and employee related taxes.
Of course, the list goes on. Practically every business of every size needs to examine these issues in advance of closing the year-end books to make sure every advantage is captured. If all your accountant is doing for you is telling you how much to pay the IRS, then they’re not doing enough. So add this important team member to your list of advisors now to make 2020 your best year yet.